Accommodating Former Employees

Responding to requests from former employees who have been laid off requires some finesse -- and knowledge of the law -- by HR professionals. While there's no requirement to rehire, offer transfers or accommodate other requests from laid-off workers, HR should tread carefully to reduce the risk of liability.

Question: An employee, laid off from his position in the installations department, offered to work in the company's repairs department, but the company declined to move him because that was not his area of expertise, although he did work in that department for about six months while employed by the company. Is there any liability for the company when we hire others to fill that position?

Answer: Generally, employers in the United States have free rein to decide which employees to lay off and which to hire on account of the employment-at-will doctrine, which grants employers the freedom to discharge any employee for any reason at all, even an unfair one -- so long as the employer and employee have not entered into a personal employment contract specifying the term of employment or the acceptable reasons for discharge, or a collective-bargaining agreement. In addition, the discharge must not violate any state or federal laws, such as those prohibiting discrimination. For example, an employer could not discharge an employee on the basis of gender, race, religion, age or disability. See, e.g., 42 U.S.C. 2000e, 29 U.S.C. 621-34; 42 U.S.C. 12101. 
In cases where an employee is let go as part of a reduction in force, as opposed to terminated for poor performance, the employer has no legal obligation to transfer that employee to another open position in the company. The only obligation the employer has is to consider the employee along with all the other applicants if he or she applies for another position within the workplace. See Jackson v. Sara Lee Bakery Group, 2009 WL 5206710, at *20 (N.D. Ala. Dec. 16, 2009).

Obviously, the laid-off employee cannot be denied a job based on race, gender, religion, age or any other protected status. Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 1344-1345 (11th Cir. 2003). 

However, even though there is no obligation to transfer an employee, regardless of that employee's qualifications, employers should exercise caution when laying individuals off in one department while hiring new workers in another.

Most workers fit into some type of "protected class" under state or federal law and the employer may open itself up to liability if the employee suspects that the lay off, coupled with the refusal to transfer, was motivated by discrimination. See, e.g., 42 U.S.C. 2000e, 29 U.S.C. 621-34; 42 U.S.C. 12101.

In a situation such as the one described above, where the employer opts to go with an outside hire rather than transfer from within, the employer should be especially cognizant of the qualifications of who it hires.

Should the employer opt to lay off a member of a protected class and then bring in a non-protected applicant, the appearance of discrimination may exist.

It is important for the employer to neutralize any suggestion of improper conduct by showing that the individual it hired is more qualified than the employee it discharged. Laying off a protected individual instead of granting a transfer to an open position, only to hire someone less qualified for the open position, would likely create a presumption of discrimination difficult to rebut, whether it is actually present or not.

An employer should also consider if and how it advertises for open positions in its other departments. If an employer has a formal system for posting vacancies, it is important that it maintains that system and allows laid-off employees to be aware of the openings.

Courts have held that an employee who fails to apply for a particular position cannot later assert a discrimination claim against his or her employer for failure to hire because it is unreasonable to an employer to consider an applicant who never applied. See Williams v. Giant Food Inc., 370 F.3d 423, 430-431 (4th Cir. 2004); Wanger v. G.A. Gray Co., 872 F.2d 142, 145-46 (6th Cir. 1989); Box v. A & P Tea Co., 772 F.2d 1372, 1376 (7th Cir. 1985).

Put simply, a general interest in being rehired without submitting an application is not enough to base a discrimination claim on, especially when that employee knew the employer was accepting applications. See Smith, 352 F.3d at 1345.

However, the opposite also holds true. If an employer fails to make its employees aware of vacancies, a court may treat the employee as if he or she actually applied for a specific position, whether or not the application was ever made. See, e.g., Mauro v. S. New England Telecomms., Inc., 208 F.3d 384, 387 (2d Cir. 2000) (per curiam ) (stating that the application requirement did not apply where "the plaintiff indicated to the employer an interest in being promoted to a particular class of positions, but was unaware of specific available positions because the employer never posted them").

This means that an employer should not attempt to hide the fact that there are job openings in other departments. If it has used a job-posting system in the past, it should continue to use that system. The goal is to prevent a laid-off employee who was denied a transfer from being able to assert that he or she was unfairly shut out of opportunities in different departments.

In sum, an employer is free to lay off an employee instead of transferring that individual to another department, regardless of his qualifications.

However, as with any reduction in force, the employer must be careful to avoid the appearance of discrimination. The employer should be aware of the subject employee's protected status and endeavor to avoid any suggestion of discriminatory motives in its decision to bring in outside hires.

The employer should also make sure that the laid-off employee has the ability to find out about job openings in other departments so he has the option of applying and, if he does choose to apply, the employer must fairly consider his application.  

Question: An employee who worked for the company demanded all her personal papers be surrendered back to her possession. These are non-company related items such as letter of recommendation, high-school transcript, copy of licenses she voluntarily attached with her initial application, etc. She was informed that such items belong to the company. Are we required to return such items? Is there any specific documentation the employee would need to present in order to get such items returned?

Answer: Personnel records are ultimately the employer's property, and as such, many states do not require employers to provide their employees access to their personnel files. See Employment Coordinator: Personnel Manual, Human Resource Planning, 1:44 (2010); 40 Okla. Stat. Ann. 191 (2005) (employees are only entitled to the results of any medical examination required by an employer); Ohio Rev. Code. Ann. 4113.23 (current and former employers may only review medical records maintained by the employer).

However, in our culture of free flowing information, this is rapidly changing.

Currently approximately 22 states require employers to give employees access to their personnel records and New York has legislation pending that, if passed, will increase that number to 23. See 2009 NY Assembly Bill S01629.

Importantly, former employees are not always given the same access rights as current employees.

The fact that an individual is no longer working for the employer may foreclose access, especially if a significant period of time has gone by since the employment relationship ended. See, e.g. Nevada Rev. Stat. Ann. 613.075 (restricting access rights to sixty days after termination).

Typically, current employees are entitled to inspect their records at least once per year during normal business hours. In many states an employer may require that a request to inspect the file be made in writing -- and some states even allow the employer to specify the type of form used for the request. See Illinois Statute 820 Ill. Comp. Stat. 40/2 (2005) (allowing an employer to only accept requests submitted on a company approved form).

Some information may be excluded, depending upon the applicable laws, such as information about third parties or medical records. Many states allow the employee to have a copy of the file, usually at a reasonable cost. However, the definition of a "personnel file" as well as the limits of an employee's access to it, vary greatly.

Generally a personnel file is defined as any record that the employer uses to determine an employee's qualifications for hiring, promotion, transfer, compensation or disciplinary action. See e.g. Massachusetts Personnel Records Statutes, M.G.L. c. 149, 52C. The definition is usually not limited to "official" personnel documents such as an employment application, but can include any document a manager used to make employment decisions. See Conn. Gen. Stat. 310128a to 31-128j (2006); 19 Del. C. 730 to 735 (2006); Iowa Code Ann. 91B.1 (2005).

States disagree as to whether employees should be entitled to a full copy of their files with no limitations.

Some states require that the employee be given full access and copies of their entire file while others only allow employees to examine the original documents under supervision. See Rhode Island Gen. Laws 28-6.4-1, 2 (2006) (allowing employees to inspect personnel records but forbidding them from removing or copying the documents).

Again, a former employee's right to inspect may be much more limited than a current employee's. See 43 P.S. 1321 ? 1324 (2005) (allowing only former employees who were "laid off with re-employment rights" to access their files).

No state appears to require the employer to relinquish original documents back to the employee. In fact, some states require that employers maintain their records for a certain period of time after the employee's relationship with the employer has ended. See e.g. Massachusetts Personnel Records Statutes, M.G.L. c. 149, 52C (requiring employers to retain records for three years after termination of employment).

In sum, depending upon the applicable state law, a former employee may have a right to review his or her personnel file and may even be permitted to have a complete copy for his or her own records. In dealing with requests for information in a personnel file, an employer should consult with legal counsel to determine the following:

1) Whether the law in their state gives employees access;

2) Whether former employees also have access and, if so, for how long;

3) Whether the employer is required to produce the full file and if the employee is entitled to a copy; and

4) Whether the employer is legally required to hold the file for a certain statutory period.

An employer should also keep in mind that the employee may be required to submit requests for personnel records in writing, and, depending upon the local law, the employer can require that the request be on a form of its choosing.

Regardless of the state, however, employers are not generally required to give employees the original documents in their personnel files.

Below is a sampling of some laws governing employees' rights to their personnel files.

California: An employee is entitled to inspect and have copies of his or her personnel files which were "used or have been used to determine that employee's qualifications for employment, promotion, additional compensation, or termination, or other disciplinary action." Cal. Lab. Code. 1198.5.

An employee is only entitled copies of documents bearing his or her signature, so an employee's request for letters of recommendation or a high-school transcript could be refused. See Board of Trustees v. Superior Court of Santa Clara County, 119 Cal. App. 3d 516 (1981) (stating that the reason to withhold letters of recommendation is to preserve the privacy of the authors).

California's statute applies to former employees as well, but, importantly, an employee may only access his or her records until the statute of limitations has run on whatever employment claim, if any, the individual may wish to pursue.

Connecticut: Former and current employees have access to their files twice per calendar year upon written request. The employee is not entitled to examine reference letters the employer acquired from other sources besides the employee. The employee is also permitted to make a copy of the file, however, the employer may charge the employee a reasonable copying fee. Conn. Gen. Stat. 310128a to 31-128j (2006).

Illinois: Current employees must submit a written request to examine their files, and the employer may require requests to be on a specific, company-approved form. Former employees have up to one year before the employer may deny them access.

The employee may review the records twice per year (at reasonable intervals) and the employer is permitted to have someone present while the employee examines the file. The employee may have a copy of the file upon request and the employer may charge a reasonable copying fee. The employee is not entitled to examine reference letters. 820 Ill. Comp. Stat. 40/2 (2005).

Massachusetts: Current and former employees are permitted to review their personnel files, upon written request, during normal business hours. They are also entitled to a copy of the records. The employer is required to keep an employee's personnel record for at least three years after the individual is no longer employed by the company. Massachusetts Personnel Records Statutes, M.G.L. c. 149, 52C.

New Jersey: New Jersey law does not specifically require an employer to give an employee access to his or her own personnel file. Accordingly, it is permissible for an employer to deny an employee's request to review his or her file. See Velantzas v. Colgate-Palmolive Co.109 N.J. 189, 194 (1988) (only allowing a former employee to gain access to her personnel file as part of discovery in a wrongful-termination suit).

Pennsylvania: An employer must allow current and "laid off employees with re-employment rights" to inspect their personnel files at least once per year. The records must be available during regular business hours. Unlike in many other states, the employee is not entitled to a copy of the records. However he or she is permitted to take notes on the information. References may be excluded from the file. 43 P.S. 1321 ? 1324 (2005).

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer Rose in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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Mar 22, 2010
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